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THE GOVERNMENT

THE GOVERNMENT

DECREE No. 16/2000/ND-CP OF MAY 10, 2000, ON THE SANCTIONING OF ADMINISTRATIVE VIOLATIONS IN THE FIELD OF THE STATE MANAGEMENT OVER TECHNOLOGY TRANSFER

THE GOVERNMENT

Pursuant to the Law on Organization of the Government of September 30, 1992;

Pursuant to Part VI, Chapter III of the Civil Code of October 28, 1995;

Pursuant to the Ordinance on the Handling of Administrative Violations of July 6, 1995;

Pursuant to the Government�s Decree No. 45/1998/ND-CP of July 1st, 1998 stipulating in detail the technology transfer;

At the proposal of the Minister of Science, Technology and Environment,

DECREES:

Chapter I

GENERAL PROVISIONS

Article 1.- Scope and subjects of application

1. Individuals and organizations prescribed in Article 5 of the Ordinance on the Handling of Administrative Violations that intentionally or unintentionally commit violations of the regulations in the field of the State management over technology transfer, which are, however, not so serious as to be examined for penal liability, but, according to regulations, must be administratively sanctioned, shall be sanctioned according to the provisions of this Decree.

2. Administrative violations of the regulations in the field of the State management over technology transfer include:

a/ Violations of the State management regulations on ownership in the field of technology transfer; violations of the State management regulations on technology transfer in the field of culture, national defense and security, social order and safety;

b/ Violations of the State management regulations on: the content, form and time limit for performance of technology transfer contracts stipulated in Article 4, Article 8 and Article 15 of Decree No. 45/1998/ND-CP of July 1st, 1998 stipulating in detail the technology transfer (hereinafter called Decree No. 45/1998/ND-CP for short);

c/ Violations of the State management regulations on: reporting on the process of contract performance to the State management agencies, the prescribed level of the contract payment prices, the approval and registration of technology transfer contracts, and information supply obligations stipulated in Article 22, Article 23, Article 31, Article 32, Article 33 and Article 34 of Decree No. 45/1998/ND-CP;

d/ Acts of obstructing the inspection and supervision by the competent State management agencies;

e/ Violations of the State management regulations on technology transfer consultancy service activities.

3. For technology transfer contracts not subject to approval or registration as stipulated by Decree No. 45/1998/ND-CP, which, however, the contracting parties voluntarily request the State management agencies to approve or register, they shall also fall under the scope of application of this Decree.

4. For the technology transfer terminology used in this Decree, the provisions in Article 2 of Decree No. 45/1998/ND-CP shall apply.

Article 2.- Principles for application of various forms of administrative sanctions

1. The principles for sanctioning administrative violations committed by individuals and organizations in the field of the State management over technology transfer shall comply with the provisions in Article 3 of the Ordinance on the Handling of Administrative Violations of July 6, 1995 (hereinafter called the Ordinance on the Handling of Administrative Violations for short)

2. In cases where a violation is liable to a pecuniary fine, the concrete level of such fine shall be the average level of the fine bracket prescribed for the violation. If extenuating circumstances are involved the fine may be reduced lower than the average level but not than the minimum level of the fine bracket. If aggravating circumstances are involved, the fine may be increased higher than the average level but not than the maximum level of the fine bracket.

3. For extenuating and aggravating circumstances, Article 7 and Article 8 of the Ordinance on the Handling of Administrative Violations shall apply.

4. For individuals or organizations that are sanctioned for administrative violations, one year after the date they completed the implementation of sanctioning decisions or after the date the sanctioning decisions ceased to be effective, if they do not relapse into such violations, they shall be considered as having never been sanctioned for administrative violations.

Article 3.- Forms of sanctions against administrative violations in technology transfer

1. Principal sanctions:

a/ Warnings: applicable to minor, first-time violations involving extenuating circumstances;

b/ Fines: applicable to violations which are more serious in nature and extent than those liable to warning. The fine levels shall be decided on the basis of the nature and seriousness of the violations and within the prescribed fine bracket.

2. Additional sanctions:

a/ Stripping of the right to use licenses related to technology transfer activities;

b/ Confiscation of material evidences and/or means used in the administrative violations in technology transfer activities.

3. Other measures to be applied:

a/ Forcible compensation for damage caused by the administrative violations in technology transfer activities (for damage worth up to 1,000,000 VND, the involved parties cannot reach agreement on the compensation level, the persons competent to sanction shall decide the compensation level). Damage worth over 1,000,000 VND shall be dealt with according to the civil procedure legislation;

b/ Forcible implementation of measures to overcome environmental pollution caused by administrative violations;

c/ Forcible destruction of products manufactured with the transferred technologies, which are harmful to the people�s health and the environment or cause adverse cultural consequences.

Article 4.- Statute of limitations of sanctions against administrative violations

1. The statute of limitations of sanctions against administrative violations in technology transfer shall be two years from the date the administrative violations are committed in the transfer of technologies from abroad into Vietnam and vice versa; It shall be one year for domestic technology transfers. Past the above-mentioned statute of limitations, no sanctions shall be imposed but any measures specified at Points b and c, Clause 3, Article 3 of this Decree may be taken.

2. For individuals violating laws on technology transfer activities against whom prosecution or lawsuit is initiated or decisions are issued to bring their cases for trial according to the criminal procedures, but afterwards decisions are issued to stop the investigation or the case, they shall be subject to administrative sanctions if they violate the provisions in this Decree; and the statute of limitations for such administrative sanctions shall be three months from the date they receive the stoppage decisions.

3. Within the time limits prescribed in Clause 1 and Clause 2 of this Article, if an organization or individual commits a new administrative violation or deliberately eludes or obstructs the sanctioning, the statute of limitations stated in Clause 1 and Clause 2 of this Article shall not apply. Rather, it shall be counted from the time the new violation is committed or the time the eluding or obstructing act is terminated.

Chapter II

VIOLATIONS, FORMS AND LEVELS OF SANCTIONS

Article 5.- Violations of ownership in technology transfer

1. A fine of between 500,000 VND and 2,000,000 VND shall be imposed on the technology transferor in cases where the technology transfer contract is not subject to approval but the technology transferor is not the lawful owner of the technology or is not authorized by the lawful owner to transfer the right to use the technology and causes damage to the technology transferee.

2. Other measures to be applied: forcible compensation for damage in case of violation of Clause 1 of this Article.

Article 6.- Acts of abusing decisions on approval of technology transfer contracts; acts of violating the State management regulations on technology transfer in the field of culture, national defense and security, social order and safety

1. A fine of between 10,000,000 VND and 20,000,000 VND shall be imposed for acts of abusing decisions on approval of technology transfer contracts to commit illegal acts.

2. A fine of between 15,000,000 VND to 30,000,000 VND shall be imposed for acts of performing technology transfer contracts in the field of national defense and security without the competent State body�s permission to transfer such technology(ies).

3. A fine of between 70,000,000 VND to 100,000,000 VND shall be imposed for acts of performing technology transfer contracts not subject to approval but the transferred technology(ies) badly affects and causes adverse consequences on culture, defense, national security, social order and safety.

4. Additional sanctions and other measures:

a/ Stripping of the right to use licenses related to the technology transfer contracts for up to six months for violations stated in Clause 1 of this Article;

b/ Forcible destruction of products manufactured through the performance of the technology transfer contracts stated in Clauses 2 and 3 of this Article, which badly affect and cause adverse consequences on culture, confiscation of material evidences and/or means used for performance of the technology transfer contracts where the violation stated in Clause 3 of this Article is committed.

Article 7.- Acts of violating the State management regulations on: registration or approval of technology transfer contracts; performance of invalidated contracts or contracts with a content banned in the field of technology transfer

1. A fine of between 10,000,000 VND to 20,000,000 VND shall be imposed for one of the following acts:

a/ Performing technology transfer contracts subject to registration without registering them; subject to approval without submitting them to the competent authorities for approval;

b/ Failing to make additional registration or apply for additional approval when amendments and/or supplements are made to some contents of the contracts which are subject to registration or approval.

c/ Incorporating into technology transfer contracts not subject to approval or registration those contents banned under Article 13 of Decree No. 45/1998/ND-CP.

2. A fine of between 20,000,000 VND and 40,000,000 VND shall be imposed for acts of performing technology transfer contracts with contents invalidated under Article 18 of Decree No. 45/1998/ND-CP.

3. Additional sanctions: Stripping of the right to use licenses related to the technology transfer contracts for up to six months, where violations stated at Point b, Clause 1; Clause 2 of this Article are committed.

Article 8.- Acts of violating the regulations on reporting to the State management agencies in the course of performance of technology transfer contracts

A fine of between 1,000,000 VND and 3,000,000 VND shall be imposed for one of the following acts:

a/ Failure to submit or submitting later than the prescribed time the pre-acceptance test reports, reports on appraisal of the contract performance in each stage; annual reports as prescribed in Article 22 of Decree No. 45/1998/ND-CP;

b/ Failure to notify the agencies that have approved the contracts as prescribed by law when the contracting parties voluntarily cancel the approved technology transfer contracts.

Article 9.- Acts of violating the State management regulations on the maximum duration for completion of technology transfer contracts and setting the payment prices higher than the prescribed levels

1. A fine of between 2,000,000 VND and 5,000,000 VND shall be imposed for one of the following acts when technology transfer contracts are performed without using the State capital:

a/ The duration for contract performance exceeds the prescribed limits set in Article 15 of Decree No. 45/1998/ND-CP;

b/ Setting a payment price higher than the price level prescribed in Article 23 of Decree No. 45/1998/ND-CP.

2. A fine of between 15,000,000 VND and 30,000,000 VND shall be imposed for one of the following acts when technology transfer contracts are performed with the use of State capital:

a/ The duration for contract performance exceeds the prescribed limits set in Article 15 of Decree No. 45/1998/ND-CP;

b/ Setting a payment price higher than the price level prescribed in Article 23 of Decree No. 45/1998/ND-CP.

3. Additional sanctions: Confiscation into the State fund the payment price amount in excess of the value prescribed at Point b, Clause 2 of this Article.

Article 10.- Acts of violating regulations on contract formation

A fine of between 20,000,000 VND and 30,000,000 VND shall be imposed for acts of performing technology transfer contracts with various contents without making a common contract therefor as prescribed in Article 8 of Decree No. 45/1998/ND-CP but making separate contracts for every content so as to avoid the State�s control.

Article 11.- Falsification and deception in dossiers of application for approval or registration of technology transfer contracts

A fine of between 2,000,000 VND and 5,000,000 VND shall be imposed for falsification or deception in dossiers of application for approval or registration of technology transfer contracts.

Article 12.- Acts of obstructing, including refusal to supply information, the inspection and supervision by the competent State management agencies; violations of the regulations on technology transfer consultancy service activities.

1. A warning shall be served or a fine of up to 500,000 VND shall be imposed on organizations or individuals that refuse to supply information relating to technology transfer at the request of the competent agencies.

2. A fine of between 1,000,000 VND and 3,000,000 VND shall be imposed on organizations or individuals that obstruct the inspection or supervision by the competent State management agencies.

3. A fine of between 2,000,000 VND and 5,000,000 VND shall be imposed on organizations or individuals engaged in technology transfer consultancy service activities when they commit one of the following acts:

a/ Providing wrong consultancy or notification of provisions of the legislation on technology transfer, thereby causing damage to the State or the contracting parties;

b/ Deceiving or compelling the contracting parties during the process of consultancy;

c/ Assuming the names of State management agencies in charge of technology transfer or their personnel in order to provide technology transfer consultancy service, causing misunderstanding of the functions, scope of power and responsibilities of consultancy-providing organizations or individuals.

4. Additional sanctions: Stripping of the right to use the license for technology transfer consultancy service activities for up to six months where the violation stated in Clause 3 of this Article is committed.

Chapter III

COMPETENCE AND PROCEDURES FOR SANCTIONING ADMINISTRATIVE VIOLATIONS

Article 13.- The sanctioning competence of the specialized science and technology Inspectorate

1. Specialized science and technology inspectors under the Ministry of Science, Technology and Environment and the Science, Technology and Environment Services of the provinces and centrally-run cities, who are on duty, shall be entitled to:

a/ Serve warnings;

b/ Impose fines of up to 200,000 VND;

c/ Confiscate material evidences and/or means used for the administrative violations, worth up to 500,000 VND;

d/ Compel the destruction of products created by technology transfer activities, which cause harms to environment and people�s health or bad consequences to culture.

2. The specialized science and technology chief inspectors under the Environment and the Science, Technology and Environment Services of the provinces and centrally-run cities shall be entitled to:

a/ Serve warnings;

b/ Impose fines of up to 10,000,000 VND;

c/ Confiscate material evidences and/or means used for the administrative violations;

d/ Compel the compensation for damage worth up to 1,000,000 VND caused by violations;

e/ Compel the destruction of products created by technology transfer activities, which cause harms to environment and people�s health or cause bad consequences to culture.

3. The specialized science and technology chief inspectors under the the Ministry of Science, Technology and Environment shall be entitled to:

a/ Serve warnings;

b/ Impose fines of up to 20,000,000 VND;

c/ Strip of the right to use licenses related to technology transfer activities granted by the Ministry of Science, Technology and Environment, the other ministries, the branches and the People�s Committees of the provinces and centrally-run cities. The procedures for stripping of the right to use such licenses shall comply with the provisions in Article 50 of the Ordinance on the Handling of Administrative Violations;

d/ Impose additional sanctions and other measures stated in Clauses 2 and 3, Article 3 of this Decree.

Article 14.- The sanctioning competence of the People�s Committees of the provinces and centrally-run cities

The presidents of the People�s Committees of the provinces and centrally-run cities shall be entitled to:

a/ Serve warnings;

b/ Impose fines of up to 100,000,000 VND;

c/ Strip of the right to use licenses related to technology transfer activities, granted by the provincial-level People�s Committees.

For the licenses related to technology transfer activities granted by the ministries, branches and higher-level State agencies, the presidents of the People�s Committees shall be entitled to issue decisions to stop the violations and request the competent State agencies to strip of the right to use such licenses.

Article 15.- The sanctioning competence of the customs, tax and market control agencies

The customs, tax and market control agencies shall impose sanctions against administrative violations related to technology transfer according to their respective competence prescribed in Articles 30, 32 and 33 of the Ordinance on the Handling of Administrative Violations.

Article 16.- Determination of competence to sanction administrative violations in technology transfer

1. In cases where an administrative violation in technology transfer falls under the handling competence of different agencies, the sanctioning shall be effected by the agency that first receives and processes it.

2. In cases where an administrative violation in technology transfer does not fall under the sanctioning competence of the competent person who receives and is processing it, he/she must transfer the dossier to the competent agency for decision.

3. When deeming that an administrative violation in technology transfer shows signs of constitution of a crime, the competent person who receives and is processing it must immediately transfer the dossier to the same-level investigating agency for settlement.

It is strictly forbidden to keep technology transfer cases showing signs of crime constitution for sanctioning them as administrative violations.

Article 17.-

1. When detecting administrative violations in technology transfer activities, the competent persons specified in Articles 13, 14 and 15 of this Decree must issue decisions to immediately stop such violations.

2. For administrative violations subject to warnings or fines of up to 20,000 VND the persons competent to sanction them must make minutes and issue sanctioning decisions on the spot and strictly observe the provisions in Article 46 of the Ordinance on the Handling of Administrative Violations.

3. For administrative violations subject to fines of over 20,000 VND, the persons competent to sanction them must make minutes on these administrative violations, issue sanctioning decisions and carry out the fining procedures according to Articles 47, 48 and 49 of the Ordinance on Handling of Administrative Violations.

4. The procedures for stripping of the right to use licenses related to technology transfer, confiscating and dealing with material evidences and/or means used for administrative violations in technology transfer must comply with the provisions in Articles 50, 51 and 52 of the Ordinance on the Handling of Administrative Violations.

Article 18.- Execution of sanctioning decisions

1. Organizations and individuals committing administrative violations in the field of technology transfer must abide by the sanctioning decisions within five days from the date they are handed the decisions, except where a different execution time limit is inscribed in the sanctioning decisions.

2. Organizations and individuals that are sanctioned for their administrative violations in the field of technology transfer but deliberately refuse to abide by the sanctioning decisions shall be coerced to do so and bear all costs arising from the coercive measures already taken as prescribed in Article 55 of the Ordinance on the Handling of Administrative Violations.

3. The sanctioned organizations shall have to abide by the sanctioning decisions and at the same time determine the faults of their personnel who have directly committed the administrative violations while perfomring their official duties so as to discipline them according to the liability examination and compel them to make compensation for damage, as prescribed by law.

Chapter IV

SETTLEMENT OF COMPLAINTS, DENUNCIATIONS AND HANDLING OF VIOLATIONS

Article 19.- Complaints, denunciations and settlement thereof

1. Individuals and organizations sanctioned for their administrative violations in technology transfer or their lawful representatives shall be entitled to make complaints about sanctioning decisions of the persons competent to sanction administrative violations.

2. Individuals shall be entitled to denounce to competent agencies, organizations or individuals administrative violations committed by any persons in technology transfer or denounce illegal acts committed by persons competent to sanction administrative violations in technology transfer.

The rights and obligations of the denouncers and the competence to settle denunciations shall comply with the legislation on complaints and denunciations.

The procedures for settlement of complaints and denunciations shall comply with the legislation on complaints and denunciations.

Article 20.- Handling of violations committed by persons competent to sanction administrative violations in technology transfer

Persons who have the competence to sanction administrative violations in technology transfer but violate the regulations on administrative sanctions, cause troubles, tolerate or cover up violators, fail to sanction or sanction ultra vires, shall, depending on the nature and seriousness of their violations, be disciplined or examined for penal liability. In cases where they cause damage to agencies, organizations or individuals, they must make compensation therefor as prescribed by law.

Chapter V

IMPLEMENTATION PROVISIONS

Article 21.- This Decree takes effect 15 days after its signing.

Article 22.- The Minister of Science, Technology and Environment shall have to guide in detail and organize the implementation of this Decree.

Article 23.- The ministers, the heads of the ministerial-level agencies, the heads of the agencies attached to the Government and the presidents of the People�s Committees of the provinces and centrally-run cities shall have to implement this Decree.

On behalf of the Government

Prime Minister
PHAN VAN KHAI